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State v. Celis-Acosta

Court of Appeals of Arizona, First Division, Department E

August 13, 2013

STATE OF ARIZONA, Appellee,
v.
DANIEL CELIS-ACOSTA, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-005622-002 The Honorable Samuel A. Thumma, Judge

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender Phoenix By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

PATRICIA K. NORRIS, Presiding Judge.

¶1 Daniel Celis-Acosta appeals from his convictions and sentences for unlawful discharge of a firearm and disorderly conduct, both class six dangerous felonies. Ariz. Rev. Stat. ("A.R.S.") § 13-3107(A) (Supp. 2012);[1] A.R.S. § 13-2904(A)(6), (B) (2010).

¶2 After searching the record on appeal and finding no arguable question of law that was not frivolous, Celis-Acosta's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search the record for fundamental error. This court granted counsel's motion to allow Celis-Acosta to file a supplemental brief in propria persona, but Celis-Acosta did not do so.

¶3 After reviewing the entire record, we find no fundamental error and, therefore, affirm Celis-Acosta's convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND[2]

¶4 Around 11 p.m. on October 14, 2010, Celis-Acosta, his mother, and other family members were at home when his mother heard a car arrive. His mother went outside, saw three or four men armed with "long" rifles that appeared to be assault rifles, and screamed for help. The armed men began to leave. As she retreated inside, Celis-Acosta ran past her to go outside with his nine millimeter handgun. He fired two shots at a fleeing vehicle, while it was approximately 709 feet away from the house. The vehicle then made a U-turn and appeared to be heading back towards Celis-Acosta. He shot at it again.

¶5 At trial, Celis-Acosta testified he had shot at the vehicle in self-defense and to protect his family. The superior court instructed the jury on "justification for self-defense --deadly physical force, " "justification for defense of a third person, " "justification in defense of premises, " "justification for using force in defense of residential structure, " and "use of force in crime prevention." The jury found Celis-Acosta guilty as charged and the court sentenced him to concurrent mitigated prison terms of one year and ten months on each count with 33 days of presentence incarceration credit.[3]

¶6 The jury, not this appellate court, finds the facts, weighs the evidence, and determines a witness's credibility. State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). Despite Celis-Acosta's testimony, on this record, there was sufficient evidence to reject Celis-Acosta's self-defense and justification claims.

DISCUSSION

¶7 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Celis-Acosta received a fair trial. He was represented by counsel at all stages of the proceedings and was present at all critical stages.

¶8 The evidence presented at trial was substantial and supports the verdicts. The jury was properly comprised of eight members and the court properly instructed the jury on the elements of the charges, Celis-Acosta's presumption of innocence, the State's burden of proof, and the necessity of a unanimous verdict. The superior court received and considered a presentence report, Celis-Acosta was given an opportunity to speak at sentencing, and his sentences were within the range of acceptable sentences for his offenses. See A.R.S. § 13-704(A), (L) (Supp. 2012) (sentencing range for class six dangerous felony); A.R.S. § 13-105(13) (Supp. 2012) ("Dangerous offense" "means an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.")

CONCLUSION

¶9 We decline to order briefing and affirm Celis-Acosta's convictions and sentences.

¶10 After the filing of this decision, defense counsel's obligations pertaining to Celis-Acosta's representation in this appeal have ended. Defense counsel need do no more than inform Celis-Acosta of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

¶11 Celis-Acosta has 30 days from the date of this decision to proceed, if he wishes, with an in propria persona petition for review. On the court's own motion, we also grant Celis-Acosta 30 days from the date of this decision to file an in propria persona motion for reconsideration.

CONCURRING: MICHAEL J. BROWN, Judge, JOHN C. GEMMILL, Judge.


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